Santorum's remarks were not unconstitutional

Jonah Goldberg
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Posted: Apr 25, 2003 12:00 AM

"If the Supreme Court says that you have the right to consensual sex within your home," Sen. Rick Santorum told an AP reporter, "then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything."

Santorum was talking about a Supreme Court case questioning the constitutionality of Texas' so-called sodomy laws, which make consensual sex between same-sex adults a crime.

Elizabeth Birch, executive director of the Human Rights Campaign -a leading gay rights organization, led a chorus of liberal critics saying in response: "When Trent Lott made similar comments, he lost his position as majority leader, and it is time for the Republican Party to consider similar steps with Senator Santorum."

First, let's cover a little history. The Civil War was America's bloodiest conflict. It cost nearly 1,100,000 casualties, claimed 620,000 lives in perhaps more than 10,000 armed clashes. The war divided the nation for generations after it ended.

The Civil Rights movement of the 1960s didn't claim nearly as many lives, but it, too, transformed American life, rearranging institutions, public and private, and rewriting the language of the nation. And, you know what? None of it had anything to do with gay people.

Brother didn't fight brother over gay marriage or homosexuals in the military. Men didn't brave police dogs and fire hoses to overturn sodomy laws and the National Guard was never called in to restore order after gays were allowed through the schoolhouse door. Gays weren't kidnapped in Africa and brought to America against their will to toil in our fields.

It's important to keep all this in mind as the chorus of comparisons between Santorum and Lott gets louder, demanding that Santorum step down from his leadership position as Lott was forced to do.

When Trent Lott defended Jim Crow, he was defending something that had been rejected by two generations of Americans. Countless elections, debates, movies, books, marches and court decisions stand as testimony to the fact that America is resolved to put Jim Crow behind us. Lott dug up a skeleton that everyone wanted to remain buried, and he was punished for it.

Santorum, meanwhile, was giving an opinion about an existing law that is currently being debated in the Supreme Court. In short, homosexuality and race are just different things. They describe different things. They have different roles in our history and culture.

Santorum's remarks were off-base, but so are the demands he step down. How was Santorum wrong? Well, first, he misspoke. When you look at the full context of his remarks, he was making a slippery slope argument, not a comparison. He could have been more clear. Even the slippery slope argument is wrong. Why would allowing homosexuals to listen to Barry Manilow records (hey, there could be kids reading this) in the privacy of

their homes lead to the legalization of polygamy or incest?

Maybe Santorum's confused about which gay rights argument is being discussed. Legalizing gay marriage might -might -improve polygamy's legal standing. Marriage is public. It carries legal entitlements and obligations. But consensual sex is private.

What muddies the waters even more is that Santorum is probably right that anti-sodomy laws are constitutional, and his critics are right that the laws should be repealed based on public policy.

I think sodomy laws may well be constitutional. Since I'm not a big believer in a "living Constitution," the fact that they've been constitutional for decades makes me think they're still constitutional.

Certainly, local communities regulate all sorts of other private behaviors -drinking and smoking come to mind.

But what liberals so often don't understand is that something can be wrong, undesirable or even illegal and still be constitutional. Liberals today believe that the Constitution should be bent, folded, spindled, mutilated in any conceivable way in order to make it support everything good and oppose everything bad. The Constitution is not a magic hat.

However, sodomy laws should come off the books because A) they're not enforced and B) they shouldn't be enforced.

Having laws you're not going to enforce is an invitation for capricious and arbitrary prosecution. Sodomy laws shouldn't be enforced because whatever benefit you might get from doing so would be so outweighed by the costs.

Gays are citizens and human beings; you don't have to like everything they do behind closed doors to appreciate the fact that kicking down those doors to make them stop is not the best use of our police forces.

Santorum's rationale for keeping the laws is that they protect families from harmful behavior. Well, if that's the standard then adultery should be an even greater crime, and we should add reason 9,147 to the list of reasons why Bill Clinton should have been impeached.

Texas' sodomy laws are archaic, futile and stupid, and that's why Texas should repeal them. Whether they're unconstitutional is another matter.